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7 habits of highly effective IP owners

This title sounded friendlier than "Keywords and metadata" and catchier than "Typology gets me excited", but they too are  tags relevant to this post. We're talking here about tagging Website content, IP notices, and other legal notices.

1.  Tagging

Tagging is the first habit of highly effective IP owners. It's also the newest habit discussed in this post. Effective tagging keeps Web surfers engaged, it is the digiarti's equivalent of a politician dropping names or a TV talking head making references to pop icons and celebrities.

Before the contemporary search engines like Google, hidden or source data HTML elements were commonly used to provide structured metadata about a Web page. They were called metatags and were used to drive traffic to Web pages. Metatags were frequently abused resulting in litigation by trade mark owners when competition used hidden metatags to redirect traffic. No doubt tags featuring registered trade marks and famous brands are now being used for similar traffic redirecting purposes. There's a question always of whether each particular instance amounts to legal content indexing or actionable IP infringement. The damages and other legal remedies a court may award are significant.

symbol_tag_cloud3Tagging has become one of the most pervasive activities driving Web 2.0 applications. This has fueled the growth of tag clouds (as illustrated), as a way to visually navigate Websites, with for example the more popular information topics highlighted with larger fonts. Each day millions of blog  and Web pages are tagged  to help drive traffic to them. Without the tagging revolution would there still be millions of eyeballs heading to Yahoo!'s Flickr, Del.icio.us, Digg, YouTube or Technorati?

I'm curious. Is "tagging" already the dominant term for data labelling, indexing, classification and categorisation

Is tagging the new "attachment"? I use that word to refer to material I add to the back end of a contract. I  was an early adopter recognising that email would make it the common and plain English term. In the process I dropped ye olde lawyer terms like annexure.

The next four habits of highly effective IP owners all involve use of IP notices. I'll briefly cover trade mark, copyright and confidential information notices, though there are others. IP notices are important. Though not specifically mentioned, they fall in item 7 in The joy of IP strategy - top 10 questions list.

It is not mandatory for an IP owner to use IP notices, though an IP licensee can be mandated to use them, not remove them and not change them. Misuse of IP notices can rob an IP litigant of a sword (eg a legal cause of action) or a shield (eg a legal defence argument). No IP owner can be effective without some knowledge or use of IP notices.symbol_tm

2.  Use a legal notice for unregistered Trade Marks - TM

Placing the symbol or letters TM, ie TM, after an unregistered trade mark (whether it is a word, phrase or logo) signifies that you consider the mark to be at law a trade mark.  In Microsoft Word the symbol can be located by pressing the Ctrl, Alt and T keys.  Alternatively, or additionally, place an asterisk (*) next to the mark and a nearby or bottom of page small print statement of ownership, eg: "Trade mark of Global Domination Pty Ltd".

symbol_trade_mark

3.  Use a legal notice for registered trade marks - ®

Placing the symbol or letter "R" in a circle, ie ®, after a mark signifies that the mark is a registered trade mark.  Under Australian trade mark law, and most other countries, that symbol can only be used if it is in fact registered.  In Microsoft Word the symbol can be located by pressing the Ctrl, Alt and R keys.  Alternatively, or additionally, place an asterisk (*) next to the mark and a nearby or bottom of page small print statement of ownership, eg: "Registered Trade mark of Global Domination Pty Ltd".symbol_copyright

4.  Use a legal notice for copyright material - ©

Placing the symbol or letter "C" in a circle, ie ©, after writing, a graphic or an image (eg a logo), signifies that you consider it to be subject to copyright.  In Microsoft Word the symbol can be located by pressing the Ctrl, Alt and C keys.  Alternatively, or additionally, place an asterisk (*) next to the item and a nearby or bottom of page small print statement of ownership, eg: "Copyright © Global Domination Pty Ltd 2007".

Use the TM, ® or © legal notices only to the extent necessary to practically communicate to the target audience. Don't overuse these symbols on a publication. Overuse is generally perceived to be visually ugly as well as ethically crass or heavy handed.

5.  Use a legal notice for confidential information - "Confidential

symbol_confidential2Use a term, such as "Commercial-in-Confidence" or "Private & Confidential or simply "Confidential" to signify that that the contents of a document are considered to be confidential. It does not make it so, but if the material is confidential in the eyes of the law the notice will help achieve that result.

Before leaving IP habits, a reminder is in order. There are many additional habits required to operate effectively as an IP owner in the modern information economy. For example moral rights is one which we have not mentioned due to the need for brevity. There are also numerous features not mentioned here and found in many disclaimers, Website legal notices and Website terms and conditions of use.

The final two habits are important for IP owners though they do not form part of intellectual property law.

6.  Categorise mailing lists and databases - Spam Act 2003 (Cth)

Categorisation of mailing lists is increasingly needed.  For example, it helps to separate lists of customers who opt into receiving email newsletters from those who opt out.  Customer and client lists should be separately categorised (tagged?) from cold prospects. For the latter an email mightsymbol_no_spam breach the Spam Act 2003 (Cth). The Spam Act affects who and when we can send an email or similar electronic communication.

What are the potential legal risks under the Australian Spam Act? A business that is found to be in breach of the Spam Act may be subject to a penalty of up to A$220,000 for a single day's contravention, and thereafter up to A$1.1 million.

7.  Apply privacy law considerations for data - Privacy Act 1988 (Cth)

Categorising information as regards its status under privacy law is the seventh habit.

Privacy law governs the "personal information" that should be collected, and how it should be stored, updated and used. While it has a much broader application, perhaps the most common impact of privacy law on general businesses is its affect on databases. In Australia there are many financial and other penalties for breach of privacy law, including fines of up to A$30,000 for individuals and A$150,000 for companies.

In the legal arena information can be subject to many laws. In numerous matters in recent years we have advised clients on legal and related considerations for building high-level skills for knowledge management, intellectual asset identification and labelling, and creating metadata and typology. These practices are called for in mundane day to day business operations involving data as well as in big ticket work (such as drafting complex legal documents and conducting such activities as contract management for high value deals).

As an example of what is required, greater care and attention is needed to determine the legal nature of the relationships. Tags, IP notices and privacy notices may differ or need adaptation to suit audiences, be they customers, employees, contractors, shareholders, partners (in a legal sense) or others.

So is tagging now the dominant term for such activity of labelling and categorising data and information?


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